The Rule of ‘Lis Pendens’ under Section 52 of the Transfer of Property Act, 1882.

The doctrine of Lis Pendens is expressed in the maxim ‘ut lite pendente nihil innovetur.’ the doctrine imposes a prohibition of transfer or any otherwise dealings of the suit property during the pendency of the suit. In Bellamy Vs. Sabine, (1857) 1 De G & J 566 Lord Justice Turner held that:

"It is, as I thing, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienation s pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."

What really is the object and purport of Section 52? Does it not create only a right to be enforced to avoid a transfer made pendent lite? 

In Ramjidas Natturam Jain v. Laxmi Kumar, (1986 SCC OnLine MP 89 : 1988 MP LJ 104 : AIR 1987 MP 78), it was held that pendent lite transfers are not void, but only voidable. The right ex hypothesis accrues only to such parties and in such circumstances as are expressly envisaged under section 52. It would, therefore, be reasonable to hold that one who claims the right must establish the same before he can enforce it. The right contemplated under Section 52, no doubt, can be used, both as a sword and a shield, depending on such facts as to what right or interest is transferred, who the affected party is and how and in what manner the “transfer” is likely to “affect” any party to the pending “proceeding”. It can be used as a shield in a subsequent stage of the same proceeding between the same parties or their representatives-in-interest. For, no need or occasion to establish the right arises in such a case as acts of parties bind them and their representatives-in-interest. Any person who would like to use it as a sword must, however, first establish his right to do so when, in any subsequent proceeding, objection is taken to his claim to do so. Indeed, if the transfer was not avoided by any of the parties to the earlier proceedings, likely to be affected by such transfer, the transferee is not prevented from claiming that the right to avoid transfer was lost and nothing survived to be enforced. It reiterated the observation in Jayaram Mudaliar ((1972) 2 SCC 200 where it held that:

“48. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceeding infructuous.”

In para 52, it is also held in clear and categorical terms; “The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.”

Is there any need of direction by the court to maintain status quo in case the respondents intend to change the nature and the ownership of the property?

Section 52 of Transfer of Property Act,1882 has a significant role in protecting the status of the immovable properties during the pendency of any suit or proceedings. If in any suit or proceedings in which any right to immovable property is directly or specifically in question Section 52 stipulates that the said property cannot be transferred or otherwise be dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the direction/permission of the court and on the terms which the court may impose. 

The explanation to section 52 of the Transfer of Property Act,1882 lays down that the pendency of the suit or proceeding shall be deemed to continue until the suit or a proceeding is disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of expiration of any period of limitation prescribed for the execution thereof. The broad principal underlines Section 52 of Transfer of Property Act,1882 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination [ Jagan singh vs Dhanwati (2012) 2 SCC 628)].

Thus, the Mandate of Sec 52 of Transfer of Property Act, 1882 is that the status and nature of the immovable property forming part of the proceedings should be maintained intact till final disposal of the suit or any appeal filed in respect thereto.

The defendants in a suit are prohibited by operation of Section 52 of the Transfer of Property Act,1882 to deal with the property involved in proceedings and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or the authority of the court[ Sarvinder Singh v Dalip Singh & Ors,1996 (5) SCC 539]&[ K. Ravi Prasad Reddy v. G. Giridhar, 2022 SCC OnLine AP 135.] &[ Muktakeshi Down v. Haripada Mazumdar 1987 SCC OnLine Cal 51.]. Even after the dismissal of the suit and before an appeal is presented the ‘Lis’ continues so as to prevent the defendant from transferring the property to the prejudice of the Plaintiff. The active prosecution under Section 52 Transfer of Property Act must be deemed to continue so long as the suit is pending in appeal since the proceeding in the appellant court are nearly continuation of those in the suit [ Moti chand v British Indian Corp Ltd. AIR 1932 ALL 210 ]&[ Gobind Chander Roy v Guru Churn Kurmokar, ILR (1988)15 CAL 94.]. The Hon’ble Supreme Court’s observation to maintain the status quo unaffected by the act of any party to a litigation pending its determination under Section 52 of the Transfer of Property Act,1882 is based on the Principle that normally status quo be maintained in respect of the properties involved unless and until a case of irreparable loss or damage is made out by a party to the suit, seeking change in status quo, The court should not permit the nature of the property being changed including alienation or transfer of the property as it may lead to loss or damage to the party who may ultimately succeed. It would also lead to multiplicity of proceedings. [ Maharwal Khewaji Trust(regd), Faridkot vs Baldev Dass, 2004 (8) SCC 488.] 

The above legal proposition settled by supreme court makes it clear that respondents have to make out a case that he would suffer irreparable loss and damage if an order to maintain status quo is granted in favor of the plaintiff. [  Pratap Rai Tanwani vs Uttam Chand and Another (2004) 8 SCC 490.]

Whether Section 52 of the Transfer of Property Act operates as a bar to the grant of temporary injunction under order 39 Rule 1 & 2 Civil Procedure Code?

Where there is apprehension shown that the defendant may transfer or alienate the suit property, the courts will have power under Order 39 rule 1 & 2 CPC  despite availability of Sec 52 of Transfer of Property Act to grant temporary injunction to the plaintiff such order will render the respondent/offending party liable for action and serious consequences in case of its breach of order under Order 39 Rule 2 (a) and Rule 11 of CPC. [ Prallhad Jaganath Jawale v Sitabai Chander Nikam. 2011 SCC OnLine Bom 487.]